ICBC Law

As I’ve previously written, litigation privilege is a principle which allows parties not to share relevant documents with the other side in a lawsuit in limited circumstances.  Despite this principle, the BC Courts seem to be favouring the trend of disclosure making it more difficult for parties not to disclose documents after lawsuits get underway.  Reasons for judgement were released last week demonstrating this trend.

In last week’s case (Beer v. Nickerson) the Plaintiff was injured in 2008 as a result of a slip and fall incident at a Pharmasave in Victoria, BC.  The Plaintiff alleged the fall occurred as a result of the Defendant’s “negligent operation of her scooter in the store“.

The Defendant contacted her insurance company after the incident.  The insurance company conducted an investigation and in the process of this obtained a statement from the Defendant, a drawing of the store prepared by the Defendants daughter, and photographs of the location of the incident.

After the lawsuit started the Defendant’s lawyer refused to provide these documents arguing they were protected by “litigation privilege“.   Master Bouck of the BC Supreme Court disagreed and ordered that these documents be produced.  In reaching this conclusion the Court reasoned that the documents were not privileged because a lawsuit was not a ‘reasonable prospect‘ when these documents were created and further that they were not created for the ‘dominant purpose‘ of use in a lawsuit.  Before reaching her verdict Master Bouck provided the following useful summary of the law:

[17] The legal principles to be applied on this application are well-settled and set out in Hamalainen (Committee of) v. Sippola (1991), 62 B.C.L.R. (2d) 254, and Stevanovic v. Petrovic, supra. Those principles are as follows:

1.  The party withholding disclosure bears the onus of establishing a claim for privilege over a document.

2.  The test for considering whether litigation privilege is established is two-fold:

(a)  Was litigation a reasonable prospect at the time the document in dispute was created?

(b)  If so, was the dominant purpose of the document’s creation for use in litigation? (commonly known as the “dominant purpose” test.)

3.  Litigation can properly be said to be in reasonable prospect when a reasonable person, possessed of all the pertinent information including that particular to one party or the other, would conclude that it is unlikely that the claim for loss will be resolved without it.

4.  However, the prospect of litigation alone is not sufficient to meet the claim of privilege. Nor does the denial of liability alone mean that all documents produced thereafter are subject to a claim for privilege. As stated by the court in Hamalainen v. Sippola:

Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.

6.  It is not incumbent upon the court to accept without question the opinion of either deponent on one of the very issues that is to be decided. Whether or not litigation was a reasonable prospect is a matter for the court to decide on all the evidence.

[18] To these principles I would add that the dominant purpose test is consistent with “the more contemporary trend favouring increased disclosure”: Blank v. Canada (Department of Justice), 2006 SCC 39 at paras. 60-61.

This case is helpful in permitting Plaintiffs to obtain more fulsome disclosure early in a lawsuit.  Our Courts have made it clear that if documents are gathered by an insurance company for the purpose of investigating a claim (as opposed to defending a potential lawsuit) then these documents will have to be disclosed under the BC Supreme Court Rules.

Further to my previous posts on the topic of ICBC Claims and Privilege, reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, demonstrating that a party seeking to withhold documents on the basis of ‘litigation privilege’ may face an uphill battle.

In yesterday’s case (Celli v. White) the Plaintiff was a pedestrian who was struck by a vehicle.  The Plaintiff was injured and eventually sued for damages.  In the course of the lawsuit the Defendants refused to produce a number of documents relevant to the Plaintiff’s Claim on the basis that they were protected by ‘litigation privilege‘.

The Plaintiff obtained legal advice almost immediately after the accident.  As a result of this the defence lawyers argued that “litigation was inevitable from the outset.”  On this basis the Defendant refused to produce a number of documents which were gathered by the Defendant’s insurer in the immediate aftermath of this collision.

The Plaintiff applied to Court for production of a number of the allegedly privileged documents.  The Plaintiff was largely successful and the Defendants were ordered to produce a number of documents which were gathered by the Defendants insurer in the 6 months following the collision.  In reaching this decision Master Caldwell summarized the law of litigation privilege in the context of BC Injury Claims as follows:

[8] The leading case in this subject area is Hamalainen v. Sippola (1991), 62 B.C.L.R. (2d) 254 [Hamalainen].  In that case the Court of Appeal held that two factual determinations were required in order to uphold a claim of litigation privilege:

(1)        Was litigation in reasonable prospect at the time the document was produced,

(2)        If so, what was the dominant purpose for its production?

[9] The court indicated that while the first of these requirements would not likely be overly difficult to establish, the second would be more challenging:

22.       I am not aware of any case in which the meaning of “in reasonable prospect” has been considered by this Court. Common sense suggests that it must mean something more than a mere possibility, for such possibility must necessarily exist in every claim for loss due to injury whether that claim be advanced in tort or in contract. On the other hand, a reasonable prospect clearly does not mean a certainty, which could hardly ever be established unless a writ had actually issued. In my view litigation can properly be said to be in reasonable prospect when a reasonable person, possessed of all pertinent information including that peculiar to one party or the other, would conclude it is unlikely that the claim for loss will be resolved without it. The test is not one that will be particularly difficult to meet. I am satisfied it was met in this case in connection with all of the documents in issue. The circumstances of this accident, and the nature of Mr. Hamalainen’s injuries, were such that litigation was clearly a reasonable prospect from the time the claim was first reported on December 1st, 1986.

(b)        What was the dominant purpose for which the documents were produced?

23.       A more difficult question to resolve is whether the dominant purpose of the author, or the person under whose direction each document was prepared, was “… [to use] it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation …”.

24.       When this Court adopted the dominant purpose test, it did so in response to a similar move by the House of Lords in Waugh v. British Railways Board, [1980] A.C. 521. In that case the majority opinion is to be found in the speech of Lord Wilberforce, who agreed “in substance” with the dissenting judgment of Lord Denning M.R. in the Court below. While the Court of Appeal judgments do not appear to have been reported, some excerpts from Lord Denning’s opinion are to be found in the speech of Lord Edmund-Davies, including the following at p. 541 of the report:

If material comes into being for a dual purpose - one to find out the cause of the accident - the other to furnish information to the solicitor - it should be disclosed, because it is not then “wholly or mainly” for litigation. On this basis all the reports and inquiries into accidents - which are made shortly after the accident - should be disclosed on discovery and made available in evidence at the trial.

25.       At the heart of the issue in the British Railways Board case was the fact that there was more than one identifiable purpose for the production of the report for which privilege was claimed. The result of the decision was to reject both the substantial purpose test previously adhered to by the English Court of Appeal and the sole purpose test which by then had been adopted by the majority of the Australian High Court in Grant v. Downs.

26.       Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.

27.       In that sense there is obviously no absolute rule that the decision to deny liability in such a claim must mark the point in which the conduct of litigation becomes the dominant purpose underlying the production of each and every document of the sort for which privilege was claimed in this case. But I do not read the master’s reasons as invoking any such absolute rule. He was faced with affidavit material filed by the party claiming privilege which was deficient in a number of respects. As already noted it failed to draw any distinction between the purpose underlying the production of individual documents. The risk inherent in that approach was pointed out by Mr. Justice Esson in the Shaughnessy Golf case at p. 319 of the report:

Privilege was claimed for a large number of documents. The grounds for it had to be established in respect of each one. By trying to extend to the whole list the considerations which confer privilege on most of the documents, the plaintiff has confused the issue and created the risk that, because it did not make in its evidence the distinctions that could have been made, it must be held not to have established privilege for any.

28.       Furthermore, the affidavit material concentrated on the repetitious assertion by each deponent of his belief that litigation in the case was inevitable, from which fact the dominant purpose underlying the production of all documents was apparently assumed. As already pointed out that approach to the onus facing the deponent on this question represented a mistaken view of the law.

[10] Gray J. echoed this sentiment at paragraphs 97 and 98 of Keefer Laundry Ltd. v. Pellerin Milnor Corp., 2006 BCSC 1180 as follows:

97.       The first requirement will not usually be difficult to meet.  Litigation can be said to be reasonably contemplated when a reasonable person, with the same knowledge of the situation as one or both of the parties, would find it unlikely that the dispute will be resolved without it. (Hamalainen v. Sippola, supra.)

98.       To establish “dominant purpose”, the party asserting the privilege will have to present evidence of the circumstances surrounding the creation of the communication or document in question, including evidence with respect to when it was created, who created it, who authorized it, and what use was or could be made of it. Care must be taken to limit the extent of the information that is revealed in the process of establishing “dominant purpose” to avoid accidental or implied waiver of the privilege that is being claimed.

[11] This dominant purpose test was also confirmed by Fish J. in the case of Blank v. Canada (Minister of Justice), 2006 SCC 39 at paragraphs 60 and 61:

60. I see no reason to depart from the dominant purpose test. Though it provides narrower protection than would a substantial purpose test, the dominant purpose standard appears to me consistent with the notion that the litigation privilege should be viewed as a limited exception to the principle of full disclosure and not as an equal partner of the broadly interpreted solicitor-client privilege. The dominant purpose test is more compatible with the contemporary trend favouring increased disclosure. As Royer has noted, it is hardly surprising that modern legislation and case law

[TRANSLATION] which increasingly attenuate the purely accusatory and adversarial nature of the civil trial, tend to limit the scope of this privilege [that is, the litigation privilege]. [para. 1139]

Or, as Carthy J.A. stated in Chrusz:

The modern trend is in the direction of complete discovery and there is no apparent reason to inhibit that trend so long as counsel is left with sufficient flexibility to adequately serve the litigation client. [p. 331]

61. While the solicitor-client privilege has been strengthened, reaffirmed and elevated in recent years, the litigation privilege has had, on the contrary, to weather the trend toward mutual and reciprocal disclosure which is the hallmark of the judicial process. In this context, it would be incongruous to reverse that trend and revert to a substantial purpose test.

In ordering that the Defendants produce the relevant documents the Court held that the dominant purpose of much of the defendants insurer’s early investigations was due to ‘adjusting‘ the potential claims as opposed to in response to anticipated ‘litigation‘.

Since ICBC is a monopoly insurer in British Columbia the analysis of the ‘adjusting‘ phase vs. the ‘litigation‘ stage will be triggered in most multi-party motor vehicle collisions.  The lesson to be learned is that many documents which are gathered by ICBC in the early stages which may prove harmful to a Defendant if disclosed may not be protected by privilege if they were gathered by for the dominant purpose of determining how a collision occurred.

As I’ve previously written, when a person sues for damages in the BC Supreme Court they give up certain privacy rights with respect to records (both theirs and those in the hands of third parties) to the extent necessary to ensure that relevant unprivileged documents are disclosed to have a fair trial.

In the context of personal injury litigation documents in the hands of third parties are often requested.  For example, where a Plaintiff is injured the Defendant often wishes to obtain the clinical records documenting the injuries.  Where a serious injury claim is made seeking damages for past and future wage loss often time employment records, tax records and pre-accident medical records demonstrating pre-existing disabilities are sought.

Once it’s determined that these ‘third party’ records are relevant how are they to be produced?  Often times if the records are clearly relevant the Plaintiff lawyer will obtain them and share a copy with the defence lawyer.  In cases where the parties can’t consent the party seeking the records can bring a court motion for production.

The BC Supreme Court has come up with two typical routes of disclosure; the “Jones” order and the “Halliday” order.  At the risk of over-simplification, a Jones order means ordering that the third party produce records relating to the Plaintiff directly to to the Defendant and a Halliday order means producing the records directly to the Plaintiff who then can vet clearly irrelevant entries before providing the defence lawyer with a copy.

With this introduction out of the way, reasons for judgement were released today by the BC Supreme Court providing perhaps the most thorough analysis of when each format should be used and what is required to trigger the protection of the “Halliday” format.

In today’s case (Gorse v. Straker) both parties sought various third party records relating to the litigants.  In considering the applications Mr. Justice Macaulay provided the following detailed and useful overview of this area of the law:

[6]             My general conclusions are as follows. It is necessary to start with a review of the pleadings to determine the matters in issue. Some applications fail at this preliminary point because it is obvious from the specific nature of the documents sought that the party seeking production is engaged in a fishing expedition. There is, at law, no obligation on any third party to produce irrelevant documents. See Dufault.

[7]             Assuming the application survives the initial review for relevancy, the court must then consider the evidence that the parties rely on. It is, at this point, that some of the potential inconsistency appears in the chambers decisions. I discuss some of the cases below and list others that I have reviewed.

[8]             In short, I conclude that a Halliday order is not a default order for medical or other records in which the subject of the record has an obvious privacy interest. The court should grant a Halliday order if satisfied, on the evidence, that there is a likelihood that a Jones order will also result in the inappropriate production and disclosure of irrelevant or privileged documents.

[9]             The problem that frequently presents is that one party seeks access to records of a non-party respecting the other party that are of a type in which it is reasonable to expect that some will be relevant and others irrelevant. A similar problem often arises respecting litigation privilege. It is often reasonable to assume that counsel for the party, who is the subject of the records, will have communicated with the non-party concerning the litigation. Such communications, if in existence, are likely subject to litigation privilege. It is arguable that, inHalliday, Lambert J.A. anticipated that the mechanism he described would operate in all such cases without requiring an evidentiary base. As I set out later, I do not accept that contention.

[10]         The threshold for making a Halliday rather than a Jones order is low. Nonetheless, some admissible evidence is necessary to meet it.

[11]         This leads to another issue that has attracted attention in the case law: whether the party who alleges an adverse impact on his or her privacy interest arising from the production of irrelevant, private information must personally provide evidence. After all, the affected party is ordinarily in the best position to explain how his or her privacy interest would be adversely impacted.

[12]         In my view, the party alleging the adverse impact should ordinarily swear an affidavit setting out, at least in general terms, the nature of the privacy interest but that is not an absolute requirement so long as there is other admissible evidence on the point. These are not final orders so affidavits sworn on information and belief are admissible.

[13]         Keeping in mind that the evidentiary threshold is relatively low, the evidence does not necessarily need to disclose all the details of the privacy interest but must be sufficient to reasonably identify the nature of the interest and why it appears to be unrelated to any material issue in the litigation…

[24]         When a Halliday order is made, so long as counsel fulfills his or her obligations, there is, apart from the minimal delay associated with the two-step process, no prejudice to the opposing party’s discovery rights. If the opposing party feels that relevant information may not have been disclosed, he or she can still apply to the court to make a determination, as with other disclosure concerns. Further, as suggested in Halliday, at 200, any abuse of the order by overextending claims of privilege or unduly restricting relevance can be dealt with in a costs order.

[25]         In my view, privacy considerations add to the justification for making Halliday orders for the production of medical and some other types of records. The reasoning in this regard may be followed through various decisions since Halliday, up to and including the Supreme Court decision in Keller v. Poulin (16 September 2009), Nanaimo S41497 (S.C.)…

[37]         In the result, I am satisfied that, when the record sought is likely to contain not only relevant, producible information but also irrelevant, private information, the order for production should be in Halliday format. This is very often the case with medical records and may also be applicable to MSP, disability, workers’ compensation, employment or educational records.

[38]         When the records at issue relate to medical or psychological assessment or treatment of the plaintiff after a motor vehicle accident, they may well include relevant, producible documents; irrelevant, private, non-producible documents; and documents properly subject to litigation privilege. Counsel for the plaintiff should take care to present evidence to demonstrate that there is, in fact, some irrelevant, private information or documents, properly subject to litigation privilege. It is not enough to identify the mere possibility because the court cannot properly draw an inference from a possibility.

[39]         It follows that I accept the contention of counsel for the defendants that the decision whether to make an order in Halliday format must be evidence based. In his written submissions, counsel asserts, relying on the Supreme Court decision in Grewal at para. 17, that:

A bare assertion of privacy or confidentiality over the records to be produced in the absence of any evidence regarding irrelevant or privileged information does not meet the requisite threshold for a Halliday type order.

The passage in Grewal summarizes authority for the proposition that a bare assertion of privacy or confidentiality, “in the absence of any evidence regarding irrelevant or privileged information,” is an insufficient basis for a Halliday order. In the same paragraph, the judge also referred to authority that an “expression of mere concern” that the records might contain irrelevant or privileged information is not sufficient.

[40]         I agree with those statements. It is not enough for a party or, as is often the case, a paralegal assisting the party’s lawyer to swear an affidavit raising a mere possibility of privileged or irrelevant, private information. In reaching this conclusion, I also considered and followed the reasoning in the following chambers decisions: Wieler v. Bercier, 2004 BCSC 752; Sullivan v. Lockhart, 2002 BCSC 1891; Bhandari v. Waddington, 2003 BCSC 498, 13 B.C.L.R. (4th) 373; and finally, Ross (Committee of) v. Lai, 2002 BCSC 1864.

[41]         The evidentiary burden is not an onerous one. The evidence necessary to support a conclusion that the particular records sought are irrelevant will vary according to the content of the pleadings and the nature of the record. In some cases, it may be possible to conclude, on an analysis of the pleadings, that they are irrelevant and, accordingly, not required to be produced at all. When it is apparent that some, but not necessarily all, of the records should be produced, there must be some evidence respecting the content of the records said to require the review by counsel contemplated by a Halliday order.

[42]         When the documents at issue are said to be private and irrelevant, it is usually the party who provides the evidence. For example, in Grewal, the plaintiff deposed that the consultation with her gynaecologist related to the delivery of her two children and that, in her view, the records were not relevant to the claims that she had advanced. If the question relates to litigation privilege, an appropriate agent or employee of the party’s lawyer should swear to the fact of the communications said to give rise to the privilege without disclosing actual content…

[88] I return to my suggestion that counsel should, wherever possible, work through the questions of non-party document production in a manner that recognizes and balances the often competing interests. The present applications would likely have been unnecessary if counsel had done that. In the circumstances, neither succeeded in their primary positions in any meaningful fashion. Both sides will bear their own costs as a result.

Reasons for judgement were released today by the BC Court of Appeal discussing two important legal principles in the context of personal injury claims, “In Trust” Claims and Document Disclosure requirements.

By way of brief background, in today’s case (Dykeman v. Porohowski) the Plaintiff was injured in two motor vehicle accidents.  Her matter went to trial and a Jury awarded $44,000 in total damages.  The Plaintiff was seeking substantially greater damages and she appealed alleging the trial judge made multiple errors.

The BCCA granted the appeal and ordered a new trial.  In doing so the Court made some useful comments about the above areas of law.

1.  In Trust Claims

Generally speaking when a person is injured through the fault of another and has limits they can be compensated for hiring others to help them with their limits.  If the help is provided free of charge by family members a claim can still be made and this is called an ‘in trust’ claim.

In today’s case the trial judge refused to put the “in trust” claim to the jury reasoning that injuries were not “grievous” enough for an in trust claim.   The Court of Appeal agreed that this was incorrect and that “grievousness” is not required to advance an in-trust claim.  The Court provided the following useful summary of the law:

[28] Since Kroeker, it has been settled law in this province that “housekeeping and other spousal services have economic value for which a claim by an injured party will lie even where those services are replaced gratuitously from within the family.”  In Kroeker, such recovery was allowed under the heading of ‘loss of future ability to perform household tasks’, but obviously, damages for loss of such ability prior to trial may also be properly claimed and recovered: see, e.g., McTavish v. MacGillivray, 2000 BCCA 164 at paras, 43, 51-7, perHuddart J.A.; West v. Cotton (1995) 10 B.C.L.R. (3d) 73 (C.A.) at para. 25; and Campbell v. Banman 2009 BCCA 484.  The reasoning in Kroeker has been extended beyond “spousal” services to services rendered by other members of a family: see Boren v. Vancouver Resource Society, Dufault, McTavish v. MacGillivray; Bystedt v. Hay, all supra.  Such awards are colloquially referred to as “in trust” even though it is the plaintiff who recovers them, and British Columbia courts do not generally impose trust terms in their orders, regarding the loss as that of the plaintiff: see Feng v. Graham (1988) 25 B.C.L.R. (2d) 116 (C.A.) at 9-10; McTavish, supra.

[29] The majority in Kroeker was alive to the possibility that awards for gratuitous services by family members of plaintiffs could “unleash a flood of excessive claims” (supra, at para. 29) and for that reason, urged courts to be cautious in making such awards.  In the words of Gibbs, J.A.:

… as the law has developed it would not be appropriate to deny to plaintiffs in this province a common law remedy available to plaintiffs in other provinces and in other common law jurisdictions. It will be the duty of trial judges and this Court to restrain awards for this type of claim to an amount of compensation commensurate with the loss. With respect to other heads of loss which are predicated upon the uncertain happening of future events measures have been devised to prevent the awards from being excessive. It would be reasonable to expect that a similar regime of reasonableness will develop in respect of the kind of claim at issue in this case.  [At para. 19; emphasis added.]

I do not read Kroeker or Ellis, however, as establishing a threshold of “grievousness” in terms of the injuries which may necessitate such services.  A plaintiff who has a broken arm, for example – presumably not a “grievous” injury – and who is obliged to seek assistance in performing various household tasks should not be foreclosed from recovery on this basis.  This was recognized in Ellis in the quotation reproduced above.  Thus I disagree with the trial judge’s reference to grievous injury as a threshold that the plaintiff was required to surmount if her claim was to go to the jury.  Instead, claims for gratuitous services must be carefully scrutinized, both with respect to the nature of the services – were they simply part of the usual ‘give and take’ between family members, or did they go ‘above and beyond’ that level? – and with respect to causation – were the services necessitated by the plaintiff’s injuries or would they have been provided in any event?  Finally, if these questions – which I would have thought are appropriate for determination by a jury – are answered affirmatively, the amount of compensation must be commensurate with the plaintiff’s loss.  The assessment of such loss has been the subject of several considered judgments in this province, most notably McTavish and Bystedt, both supra.

[30] The trial judge’s second reason for not putting the claim to the jury in this case was that the services which were the subject of the in-trust claim were not personal or household services but were related to the business operated by the plaintiff’s family.  As mentioned above, counsel evidently agreed that the plaintiff’s parents’ claim for ‘business losses’ had not properly been made.  It is not correct to say, however, that the plaintiff herself could not claim for assistance provided by family members in a family enterprise (see Johnson v. Miller, supra) or that there was no evidence of personal or household services having been provided by Ms. Dykeman’s parents to her.  The mother testified that she was “supposed to spend” a third of her time on the farm – in accordance with the partnership agreement in evidence – and had planned on going back to practice on a part-time basis.  Instead, she found herself spending at least 10 to 12 hours per week assisting in the business and babysitting her grandchildren when her daughter had medical appointments or migraine headaches.  At the time of trial, she testified, she was caring for her grandchildren “pretty well every day” plus assisting in the equestrian business.  The plaintiff’s migraines had become less frequent, but the medication she took for them essentially ‘knocked her out’ for 12-14 hours – during which Ms. Dykeman’s mother slept in the same room with her granddaughter.  The thrust of her evidence was that at least until her grandchildren were in school, she would not be able to return to practice even on a part-time basis.  Mr. Dykeman’s services, on the other hand, related almost entirely to “physical work” in the Freedom Fields Farm operation.

[31] In all the circumstances, it seems to me that there was evidence of household and other assistance provided by Ms. Dykeman’s parents that could have been the basis of an award and that the trial judge erred in effectively granting a ‘no evidence’ motion in respect thereof.  I would allow the appeal on this ground.

2. Document Disclosure Obligations

The second area highlighted in this case relates to document disclosure.  In pre-trial investigation the Defendants gathered a number of Internet postings apparently written by the Plaintiff.  They listed these documents as ‘privileged‘ and did not reveal them until shortly before trial.  In describing the privileged documents they labelled them as a “diskette containing an index to the Plaintiff’s web postings“.

The Plaintiff objected to these documents being used in cross examination but the trial judge allowed the cross examination.  On appeal the BCCA found that this was an error finding that the documetns were not properly described and this may have pejudieced the Plaintiff.  Specifically the BCCA said as follows:

[41] Applying these observations to the case at bar, can it be said that the descriptions reproduced above were such as to enable the plaintiff and her counsel, or a judge in chambers, to assess the validity of the claim of privilege?  In my opinion, none of the items was sufficiently described for this purpose.  Item 77, an index to the plaintiff’s “web postings”, could contain any number of “writings” posted on any number of websites, relevant or irrelevant to the case.  With respect to item 78, one does not know who wrote the “articles” regarding the plaintiff’s equestrian business or the date of such articles; with respect to item 79, there is no description of the “pictures printed out from the Internet regarding horse riding”, where they are from or what connection, if any, the plaintiff had with them; and with respect to item 80, there is again no description of the “articles”, who wrote them or when.  Counsel told the court below that the postings had all been written by the plaintiff, but even that was not apparent from the disclosure document.  Thus I disagree with the trial judge’s ruling that the postings had been adequately “listed” for purposes of R. 26.  (For a discussion of ‘e-discovery’ generally, see The Sedona Conference Working Group 7, The Sedona Canada Principle: Addressing Electronic Discovery (2008).)  If the defence had been more forthcoming, counsel for Ms. Dykeman might well have challenged the claim of privilege asserted by Mr. Harris – via the Form 93 filed by Mr. Gibb.

[42] Assuming, then, that the defence failed to make proper discovery of the Internet documents, the next question is whether it can be said the trial judge nevertheless properly exercised his discretion under the opening words of R. 26(14) to permit Ms. Dykeman to be cross-examined on some of those documents.  In Stone v. Ellerman, the majority stated that the factors relevant to the exercise of such discretion include the question of prejudice to the party being cross-examined, whether there was a reasonable explanation for the other party’s failure to disclose, whether excluding the document would prevent the determination of the issue on its merits, and whether in the circumstances of the case, the ends of justice require that the document be admitted.  In this case, counsel did not provide any “explanation” for the non-descriptiveness of Mr. Gibb’s list and argued only that disclosure hadbeen sufficient.  The trial judge therefore had no explanation to consider, even if he had been of the view that the listing was deficient.

[43] It is difficult to square the trial judge’s ruling on this second question with his prior ruling that the documents had been properly disclosed or ‘listed’.  If the latter was correct, there was no need to ‘balance’ the interests of justice in avoiding trial by ambush against the interests of justice in assessing Ms. Dykeman’s credibility by cross-examining her on the Internet postings.  Given that her lawyer had only half an hour to discuss the 124 pages with her, it cannot be said with any certainty that she was not prejudiced by what transpired.  At the end of the day, I am not confident that the apparent exercise of the trial judge’s discretion was fair to the plaintiff or rested on a correct understanding of the Rule.  I would therefore allow the appeal on this basis as well.

This case contains some other interesting comments which are worth reviewing, particularly with defence statements to the jury regarding adverse inference.  I urge all personal injury lawyers in BC to read this case in full as it thoroughly canvasses many areas that routinely arise in injury prosecution in this Province.

In BC Lawsuits one of the primary goals of the Rules of Court is to require document disclosure to put the parties on a level playing field with respect to the facts and to prevent trial by ambush.

Disclosure requirements, however, need to compete with the equally compelling doctrine of privilege which permits parties to lawsuits the right to refuse production of certain classes of otherwise relevant documents. Two categories of privileged documents which are not always clearly understood by litigants are those of ‘solicitor client privilege‘ and ‘litigation privilege’.

Today the BC Supreme Court released reasons for judgement explaining the difference between these classes of privileged documents.

In today’s case (Lougheed Estate v. Wilson) the Plaintiff sought access to certain documents which the Defendant refused to produce on the basis on litigation privilege.  In ordering that the documents be produced Mr. Justice Grauer did a great job in explaining the difference between solicitor-client and litigation privilege.  I reproduce this summary below:

(b) Solicitor-client privilege

[26] Solicitor-client privilege, or “legal advice privilege”, is conceptually different from litigation privilege.  One of the important differences is that solicitor-client privilege applies only to confidential communications between the client and his or her solicitor: Blank v. Canada, [2006] S.C.R. 319, 2006 SCC 39 at para. 28, citing with approval Professor R.J. Sharpe (now Sharpe, J.A.):  “Claiming Privilege in the Discovery Process”, in Special Lectures of the Law Society of Upper Canada (1984), 163, at pp. 164-65.

[27] The documents over which Mr. Wilson asserts privilege that are at issue before me consist solely of correspondence between Mr. Wilson’s solicitor and counsel for Elections Canada.  They do not consist of confidential communications between Mr. Wilson and his solicitor.  Accordingly, I find that they are not eligible for the protection of solicitor-client privilege.

(c) Litigation privilege

[28] The nature of litigation privilege was thoroughly discussed by the Supreme Court of Canada in the Blank case, where Fish J. quoted further from Prof. Sharpe’s article as follows (loc. cit. supra):

Litigation privilege, on the other hand, is geared directly to the process of litigation.  Its purpose is not explained adequately by the protection afforded lawyer-client communications deemed necessary to allow clients to obtain legal advice, the interest protected by solicitor-client privilege.  Its purpose is more particularly related to the needs of the adversarial trial process.  Litigation privilege is based upon the need for a protected area to facilitate investigation and preparation of the case for trial by the adversarial advocate.  In other words, litigation privilege aims to facilitate a process (namely, the adversary process), while solicitor-client privilege aims to protect the relationship (namely, the confidential relationship between a lawyer and the client).

[29] Fish J. then went on to explore the limits of the privilege:

34        The purpose of the litigation privilege, I repeat, is to create a “zone of privacy” in relation to pending or apprehended litigation.  Once the litigation has ended, the privilege to which it gave rise has lost his specific and concrete purpose – and therefore its justification.  But to borrow a phrase, the litigation is not over until it is over.  It cannot be said to have “terminated”, in any meaningful sense of that term, where litigants or related parties remain locked in what is essentially the same legal combat.

35        Except where such related litigation persists, there is no need and no reason to protect from discovery anything that would have been subject to compellable disclosure but for the pending or apprehended proceedings which provided its shield….

36        I therefore agree with the majority in the Federal Court of Appeal and others who share their view that the common-law litigation privilege comes to an end, absent closely related proceedings, upon the termination of the litigation that gave rise to the privilege [citations omitted].

37        Thus, the principal “once privileged always privileged”, so vital to the solicitor-client privilege, is foreign to the litigation privilege.  The litigation privilege, unlike the solicitor-client privilege, is neither absolute in scope nor permanent in duration.

38        As mentioned earlier, however, the privilege may retain its purpose – and, therefore, its effect – where the litigation that gave rise to the privilege has ended, but related litigation remains pending or may reasonably be apprehended….

39        At a minimum, it seems to me, this enlarged definition of “litigation” includes separate proceedings that involve the same or related parties and arise from the same or related cause of action (or “juridical source”).  Proceedings that raise issues common to the initial action and share its essential purpose would in my view qualify as well.

40        As a matter of principle, the boundaries of this extended meaning of “litigation” are limited by the purpose for which litigation privilege is granted, namely, as mentioned, “the need for a protected area to facilitate investigation and preparation of the case for trial by the adversarial advocates” (Sharpe, at p. 165).